Tobin v. McClellan

Citation73 N.E.2d 679,225 Ind. 335
Decision Date16 June 1947
Docket Number28280.
PartiesTOBIN et al. v. McCLELLAN.
CourtSupreme Court of Indiana

Appeal from Jay Circuit Court; Gustave H. Hoelscher, Special judge.

J Gordon Meeker, of Portland, and Andrew Jacobs and Sol H Esarey, both of Indianapolis, for appellants.

Roscoe D. Wheat, of Portland, and Jacob N. Lennington and Leonidas A. Guthrie, both of Muncie, for appellees.

STARR Judge.

The appellee brought this action in ejectment against the appellant Rose Tobin and one other who is not a party to this appeal. During the pendency of this action the appellee filed a second paragraph of complaint to quiet title to the real estate described in said first paragraph. Without objection appellee made certain new parties defendant to this second paragraph of complaint among whom was one William G. Beatty. Later this second paragraph of complaint was dismissed and said cause was dismissed as to all defendants except Rose Tobin. A trial was had resulting in special findings and judgment for the appellee from which this appeal was taken.

William G. Beatty appears with Rose Tobin in the assignment of error as an appellant. Appellee has moved to dismiss this appeal as to William G. Beatty for the reason that he was not a co- defendant of record at the time that the final judgment below was rendered, nor is there anything to show that he was defending the actions in appellant's name; this motion is sustained. The said William G. Beatty is not a party to this judgment or in any way bound by the same. This appeal is therefore dismissed as to William G. Beatty.

The only error properly assigned is the overruling of appellant's motion for a new trial which questions the sufficiency of the evidence and asserts that the decision is contrary to law. As only the sufficiency of the evidence is questioned these grounds will be considered together.

The appellee's evidence is to the effect that on January 28, 1938, the appellant entered into a written contract with the Merchants National Bank of Muncie, then owner of the real estate in question, for the sale on a monthly basis of a two story basement building in the City of Muncie, Indiana; that on October 19, 1938, the appellant, Rose Tobin, for a valuable consideration, assigned in writing all her right, title, and interest in said contract to the appellee; that on November 12, 1938, the bank, upon receiving from the appellee the full balance owing on the contract, deeded the real estate to him. Appellee also introduced evidence to the effect that shortly after the execution of said assignment to him of the contract of purchase and before he received a deed therefor, and while appellant was in possession, it was discovered that the appellant had paid certain premiums for insurance on the premises which had not been taken into account at the time that he received the assignment from the appellee, and that it was agreed by the parties hereto that the appellant, for having paid said insurance premiums, should retain possession of the premises for a period of two months; that the appellant did so retain possession of the premises and at the expiration of said period refused and still refuses to give possession of the premises to this appellee.

Appellant's evidence discloses that on November 12, 1938, being the date of said deed to the appellee, appellee filed an action in ejectment for the possession of the premises against William G. Beatty and others to which action the appellant was not a party; that said action terminated in a judgment in favor of the said Beatty, which judgment was appealed by the said McClellan and was affirmed in a written opinion by the Appellate Court of Indiana, which opinion was filed on April 7, 1944, and is entitled McClellan v. Beatty et al., 1944, 115 Ind.App. 173, 53 N.E.2d 1013, 1016, 55 N.E.2d 327. This opinion which was received in evidence discloses what the issues were and upon what evidence they were decided and also that the evidence in that case was the same as above set out, as to the execution of said contract of sale, the assignment thereof, and the deed for said property to McClellan. The opinion discloses that on January 15, 1935, the bank, then owner, executed to Rose Tobin a certain contract for the sale of the premises. Later the bank having furnished funds for alterations and to cover this item the first contract was superseded by another between the same parties which was in turn superseded by the contract of January 20, 1938; that these contracts conferred on the purchaser the right to possession of the premises; that although each contract was made in the name of Rose Tobin as purchaser the property purchased was for the use and benefit of the said Beatty and that appellant, Tobin, held each contract as trustee for Beatty; and that the purchase was made in her name for the sole purpose of securing her against loss for the advancement of part of the purchase price of the property for Beatty's benefit; that she had no actual interest in the building except as security for her advancement and that prior to said assignment of the contract Beatty had advanced about $3,500 for repairs, taxes, upkeep, and insurance and Rose Tobin had made the down payment of $1,500 and had invested about $1,000 additional in the project, and that since the execution of the contract of July 15, 1935, Rose Tobin leased an apartment on the second floor of the building from Beatty; that at the time the appellant took the deed for said premises he had actual knowledge of the occupancy of the basement of the building by Beatty and before the assignment was executed Rose Tobin had told him that Beatty had improved the property and should be considered in the transaction and that McClellan had told her to 'forget it'; that Beatty neither knew of nor acquiesced in the transaction between Rose Tobin and the appellant or in the execution of the deed by the bank.

It is further stated in said opinion that McClellan's knowledge of the actual occupancy by Beatty of the basement portion of the building, coupled with the information given him by Rose Tobin, was sufficient to put him upon inquiry as to Beatty's rights, and he is 'chargeable with all the knowledge that a reasonable inquiry would have imparted, * * * including the fact that Beatty was entitled to the possession of the building.' The opinion holds 'It was incumbent upon the appellant to prove his right to the immediate possession of the real estate, and he having failed to do so the judgment of the court below must be affirmed.'

In the case before us the appellant also introduced in evidence a certified copy of a certain plea in abatement because of a prior suit pending. This plea was filed by McClellan on May 2, 1939, in the Marion Circuit Court in a suit there pending wherein Rose Tobin was the plaintiff and the appellee, with others, was a defendant. In this plea in abatement, which was verified by the appellee, he stated and alleged that the appellant herein on the 19th day of October, 1938, had executed an assignment to him of the said contract for the purchase of the involved real estate between the bank and Rose Tobin dated January 28, 1938. The plea alleged that McClellan had fully performed all of the terms of the contract which was assigned to him; that the Merchants National Bank of Muncie, Indiana, the vendor under the aforesaid contract of sale, made and executed to the said McClellan its warranty deed for the above described real estate; that after the execution of the deed as aforesaid, the said McClellan started suit against Beatty and another and this suit is still pending (which is the same suit we have heretofore set out as having been filed on November 12, 1938, and as hereinabove fully described in this opinion); that Beatty has had continuous possession of the aforementioned real estate. The plea in abatement further states that the issue in said cause of McClellan v. Beatty was the ownership of said real estate and that Beatty claimed to be the owner of same and that Rose Tobin was claiming an equitable interest in the real estate and was claiming to be entitled to the rents and profits therefrom by virtue of the aforesaid written contract of purchase between herself and the bank; and that Beatty was claiming the title and possession and the rents and profits of the real estate by virtue of an oral arrangement with Rose Tobin, and that McClellan was claiming the title, possession, rents, and profits of the real estate by virtue of the assignment and said deed from the bank to him. It was further alleged, that all of the questions and rights of McClellan, Beatty and Rose Tobin in and to the title, the possession of, and the rents and profits of the real estate were in issue in the said suit being prosecuted by McClellan against Beatty; that any judgment rendered in the action between Beatty and McClellan will fully determine and adjudicate...

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  • Tobin v. McClellan
    • United States
    • Supreme Court of Indiana
    • June 16, 1947
    ...225 Ind. 33573 N.E.2d 679TOBIN et al.v.McCLELLAN.No. 28280.Supreme Court of Indiana.June 16, Action in ejectment by William A. McClellan against Rose Tobin and another. During the pendency of the action, the plaintiff filed a second paragraph of complaint to quiet title to the realty and ma......

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